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en-usTechdirt. Stories filed under "exceptions"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 8 Dec 2016 08:27:00 PSTCourt Tells Family Services Worker 'I Don't Approve Of Your Lifestyle' Isn't A Valid Warrant ExceptionTim Cushinghttps://www.techdirt.com/articles/20161206/16441736214/court-tells-family-services-worker-i-dont-approve-your-lifestyle-isnt-valid-warrant-exception.shtml
https://www.techdirt.com/articles/20161206/16441736214/court-tells-family-services-worker-i-dont-approve-your-lifestyle-isnt-valid-warrant-exception.shtml
A very interesting (read: wtf) case from Texas [PDF] -- one that resulted in criminal charges of official oppression against a Dept. of Family and Protective Services employee -- posits that there may be yet another warrant exemption: the "I don't approve of your lifestyle and/or choices" exception.

This "exception" has often been used by actual parents when searching rooms/electronic devices of their children, but private searches usually don't violate the Fourth Amendment. Searches using the same moral prerogative, when performed by agents of the state, do.

The case involves a warrantless search of a 15-year-old's cellphone by Natalie Reynolds, a Department supervisor. The Sheriff's Department located the runaway teen (referred to only as "A.K." throughout the decision) and turned her over to Reynolds. Reynolds confiscated A.K.'s personal belongings, including her cellphone, which she then decided to search for a number of stated reasons -- none of which was allowable under state case law, much less the Supreme Court's Riley decision.

The Riley decision is only referenced in a footnote, as the illegal searches were performed in 2012, roughly two years before the Supreme Court arrived at its conclusion. But that didn't prevent the court from finding state precedent that upheld Reynold's conviction.

Reynolds' coworkers provided plenty of testimony against her, rebutting her assertion that her search and seizure of the teen's cellphone was somehow related to finding A.K. somewhere to live.

Kenny Stillwagoner, formerly with the Department, testified that he believed Reynolds, Ross, or both of them, took possession of A.K.’s cell phone without her consent. He also testified that Reynolds remained in possession of the cell phone because she believed it contained contact information for drug dealers. In addition, Edie Diane Fletcher, also formerly with the Department, testified that, when she contacted Reynolds about the situation regarding A.K.’s cell phone, Reynolds explained to her that she could not return the phone to A.K. because she believed A.K.’s cell phone contained contact information relating to drug dealers and that “they” needed to “finish their investigation.”

A.K. testified that she became very upset when Ross and Reynolds refused to return her cell phone and that both Ross and Reynolds looked through her cell phone. Further, A.K. testified that Ross and Reynolds retrieved information from her cell phone relating to Steve Lamb and Michael Watts, and there was no evidence presented that either of these men was considered as a potential placement option for A.K. In fact, A.K. had little, if any, information as to why she was questioned about her relationship to either man.

Reynolds tried to argue that her warrantless search of the cellphone was also somehow related to "exigent circumstances" -- that there was an "emergency regarding A.K.'s physical and emotional wellbeing." The state itself disagreed with Reynold's assertion.

The State maintains that Reynolds, as a representative of the Department, cannot claim that she acted in loco parentis or as A.K.’s de facto parent because she was “not acting as a ‘parent’ when she was searching [A.K.’s] phone. Instead, she was clearly acting as an investigator attempting to build a case for either herself or law enforcement.” The State points to Reynolds’ affidavit, arguing that it “reads like a veteran police detective interrogating a criminal suspect.”

Rather than show her purported concern for A.K.'s wellbeing, Reynolds spent most of her time with A.K. questioning her about drug use, drug paraphernalia, and drug sales. Also, contrary to her stated concerns about A.K. having no place to go, the state points out that a placement facility had already been found at the point Reynolds decided to take A.K.'s phone and search it for "drug evidence."

The court notes that there are a wealth of warrant exceptions available to state agents when performing searches. Reynold's opinion of A.K.'s lifestyle, however, isn't one that's been recognized by any court -- or anyone possessing a modicum of common sense, actually.

Based on precedent and this record, we conclude that A.K. had a reasonable expectation of privacy in her cell phone. Reynolds seems to claim, however, that, because A.K. had been known to use drugs and was allegedly having inappropriate relationships with adult men, that somehow changed A.K.’s expectation of privacy in her phone.

That's not how the Fourth Amendment works. And Reynolds' narrative about the phone's search somehow being related to caring for A.K.'s wellbeing doesn't hold up when compared to the facts.

Based on A.K.’s alleged behavior and lack of any known placement options at the time, Reynolds contends that she had an urgent responsibility to find A.K. a place to reside until the Department took custody of her and that she believed A.K.’s phone contained useful information that could assist her in that endeavor.

[...]

Had Reynolds wanted the cell phone for the purpose she claims, she would have had no reason to continue in possession of the phone once a placement facility for A.K. had been located. A.K.’s cell phone was not seized pursuant to an arrest, and there is no evidence of any warrant, court order, or consent to seize or search A.K.’s cell phone. Reynolds’ claim of exigent circumstances is not compelled by the evidence. For these reasons, we find that Reynolds’ actions were not authorized.

The conviction for official oppression is upheld. Oddly, as is pointed out at FourthAmendment.com, this sort of behavior by law enforcement officers usually only results in suppression of evidence, rather than official oppression charges. Lots of wrongful arrests and warrantless searches would seem to fit the language of the statute once the officer's immunity has been stripped.

A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful…

And yet, this charge is almost never brought, much less successfully prosecuted -- yet another way law enforcement operates at a lower level of culpability than the rest of the government. And far, far lower than what is expected of the citizens they serve.

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]]>seize,-search,-judge...https://www.techdirt.com/comment_rss.php?sid=20161206/16441736214Thu, 6 Aug 2015 13:38:22 PDTWhy Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?Mike Masnickhttps://www.techdirt.com/articles/20150805/15521431864/why-does-tpp-repeatedly-require-stronger-copyright-when-it-comes-to-public-rights-makes-it-voluntary.shtml
https://www.techdirt.com/articles/20150805/15521431864/why-does-tpp-repeatedly-require-stronger-copyright-when-it-comes-to-public-rights-makes-it-voluntary.shtmlnewly leaked IP chapter of the Trans Pacific Partnership (TPP) agreement, and how the US is pushing back against any attempt to punish abusers or to support the public domain. But in going through the documents, another key fact strikes me. Throughout the document it's designed to absolutely require strict copyright laws and enforcement. But when it gets to the public's rights, the so-called "limitations and exceptions," the agreement tosses up a big fat "meh, that one's voluntary."

We've already pointed out how ridiculous it is to refer to things like fair use as a "limitation and exception" to copyright, when it should be the public's rights -- and copyright restrictions are, by their very nature, a limitation and exception on those natural rights. But it's even worse in the TPP. As you may recall, the USTR announced, with great fanfare back in 2012, that "for the first time" it was moving to include such "limitations and exceptions" in the TPP. The USTR thought that this would appease people who had been complaining about the entirely one-sided pro-copyright extremist position that it had been pushing for decades. Of course, when the details came out it showed that the USTR was really proposing a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public that would be allowed.

Now, with the latest leak, there's something else that's noteworthy. Here's the text of the "limitations and exceptions" clause in the copyright section:

Article.GG.Y {Limitations and Exceptions}

Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system,
inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16.1, including
those for the digital environment, giving due consideration to legitimate purposes such as, but not limited
to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and
facilitating access to published works for persons who are blind, visually impaired, or otherwise print
disabled.

Notice the text I bolded: "shall endeavour." In other words, "well, you can try for it, but you don't need to do it." Now, look at basically all of the other text and it's straight up "shall." No "shall endeavour" for everything else. Everything else is required. Only the stuff about the public's rights lets countries not do it so long as they claim they tried. Here, just for comparison's sake, are just a few of the other "shall's":

Article QQ.G.1: {Copyright and Related Rights/Right of Reproduction}

Each Party shall provide that authors, performers, and producers of phonograms have the
right to authorize or prohibit all reproductions of their works, performances, and phonograms
in any manner or form, including in electronic form.

And...

each Party shall provide to authors the exclusive right to authorize or prohibit the
communication to the public of their works, by wire or wireless means, including the making available to
the public of their works in such a way that members of the public may access these works from a place
and at a time individually chosen by them.

And...

Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or
prohibit the making available of the original and copies of their works, performances, and
phonograms through sale or other transfer of ownership.

And...

Each Party shall provide that in cases where authorization is needed from both the author of a work
embodied in a phonogram and a performer or producer owning rights in the phonogram, the need for the
authorization of the performer or producer is also required.

Etc. etc. By my count, the copyright section includes thirteen "shall provide" and just the one measly "shall endeavour." And if you add in the enforcement section you get another thirty eight "shall provide" and just a single "shall endeavour" buried in a footnote unrelated to the key points in the document.

So, for those of you playing along at home, the message being sent by the TPP is pretty damn clear: when it comes to ratcheting up copyright and setting the ground rules for enforcement everything is required and every country must take part. Yet, when it comes to protecting the rights of the public and making sure copyright is more balanced to take into account the public... well, then it's optional.

I guess that's what happens when the public is not allowed a seat at the table, but the industry representatives get full time access to the document and the negotiators.

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]]>what's-up-with-that?https://www.techdirt.com/comment_rss.php?sid=20150805/15521431864Fri, 17 Apr 2015 13:59:26 PDTHow The DMCA And Anti-Piracy Measures Conspire To Keep Video Games In Their Cultural PlaceTimothy Geignerhttps://www.techdirt.com/articles/20150413/06351030627/how-dmca-anti-piracy-measures-conspire-to-keep-video-games-their-cultural-place.shtml
https://www.techdirt.com/articles/20150413/06351030627/how-dmca-anti-piracy-measures-conspire-to-keep-video-games-their-cultural-place.shtml
For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.

Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.

Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.

The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.

Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.

I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.

You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.

The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”

And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.

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]]>that-belongs-in-a-museumhttps://www.techdirt.com/comment_rss.php?sid=20150413/06351030627Mon, 23 Feb 2015 12:30:46 PSTReminder: Fair Use Is A Right -- And Not 'An Exception' Or 'A Defense'Mike Masnickhttps://www.techdirt.com/articles/20150222/16392430108/reminder-fair-use-is-right-not-exception-defense.shtml
https://www.techdirt.com/articles/20150222/16392430108/reminder-fair-use-is-right-not-exception-defense.shtmlFair Use Week, according to the Association of Research Libraries, and that's as good a time as any to remind everyone that it's wrong to refer to fair as merely a "limitation or exception" to copyright law -- or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to "fair use" as a "safeguard" of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around. If we are to protect the First Amendment, and not allow for speech to be stifled, at the very least, we need a greater recognition of the importance of fair use in guaranteeing that the First Amendment's principles of free speech are allowed to thrive.

Freedom of expression is a right that may not be abridged by the government -- except in a few narrowly defined cases. Copyright is one of those cases -- and we can argue about whether or not that's appropriate, but at the very least, it's important to shift our view from thinking "copyright" is the norm and that fair use is a small "exception," to one where we recognize that free expression is the norm, with fair use making sure that freedom of expression is enabled, even when copyright is present.

Unfortunately, too many powers that be in legacy industries have sought to flip this equation. They deny that fair use is a right -- insisting it is merely a "defense" to infringement. While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights. It is not a small issue that's only important in academic debate, but rather a central issue that determines just how strongly we, as a society, believe in the First Amendment.

Finally, how could we conclude a post on fair use without including some fair use in it? How about this video, misleadingly called The Infringement Melody (Section 107 of the Copyright Act clearly states that "the fair use of a copyrighted work... is not an infringement of copyright"), which appears to be a student project to come out of a popular Yale class on Law, Technology and Culture, in which fair use is a big part of the curriculum:

F-A-I-R U-S-E... find out what it means to me!

Also, be on the lookout for tomorrow's podcast... all about fair use as well.

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]]>it's-free-speechhttps://www.techdirt.com/comment_rss.php?sid=20150222/16392430108Thu, 19 Feb 2015 15:30:36 PSTProposed Florida Body Camera Law Riddled With Exceptions At Behest Of Police UnionTim Cushinghttps://www.techdirt.com/articles/20150217/14490830061/proposed-florida-body-camera-law-riddled-with-exceptions-behest-police-union.shtml
https://www.techdirt.com/articles/20150217/14490830061/proposed-florida-body-camera-law-riddled-with-exceptions-behest-police-union.shtml
Florida's legislators are pushing through bills mandating body camera use by the state's law enforcement officers. So far, so good, except for the fact that law enforcement officers aren't really looking for greater transparency or accountability, at least not according to Florida Police Benevolent Association chief Gary Bradford.

“Our concern is if the camera is on, and it’s required to be on through the entire shift, then it will capture video and audio when you have roll calls or when you’re walking down the hallway or just as you’re go through your day. You’re on a lunch break, you’re in the privacy of your own car with your partner, you’re having a conversation about having a fight with your wife in the morning, or something along those lines, and we just think those things are private, and they shouldn’t be part of the discussion,” said Bradford.

PCS/SB 248 creates a public records exemption for an audio or video recording made by a law enforcement officer in the course of the officer performing his or her official duties and responsibilities, if the recording:

Is taken within the interior of a private residence; Is taken on the property of a facility that offers health care, mental health care, or social services; Is taken at the scene of a medical emergency; Is taken at a place where a person recorded or depicted in the recording has a reasonable expectation of privacy; Shows a child younger than 18 years of age inside a school or on school property; or Shows a child younger than 14 years of age at any location.

Taken without context, the list of exceptions seems reasonable. But match it up with recent events, and you can see where this set of exceptions could easily nullify this tool of accountability.

Medical emergency exception? Sure, HIPAA and other related laws make medical events and history very private information, subject to several sharing restrictions. But what if a cop is called to assist someone who's suffering a medical emergency or is suicidal or suffers from mental illness? Far too often, a call for help is answered with violence. Under this exception, the underlying medical emergency prompting the police response would allow law enforcement agencies to withhold captured body cam footage.

The exceptions devoted to minors would allow law enforcement agencies to withhold the sort of damning footage that contradicted the Cleveland police narrative in the shooting of 12-year-old Tamir Rice. Without this footage, the public would have been left to rely on the CPD's claims that Rice refused to comply with multiple orders to put his hands up and "made a move towards his waistband," ultimately resulting in his being shot to death by responding officers. A park surveillance camera recording showed what actually happened: two police officers drove across the park, stopping within feet of Tamir Rice and and shot him within two seconds of arrival.

"If this was really about privacy, it would apply to what officers can practically release on their own as well," Richardson says. "So this is really just about shielding police misconduct. If police want to control the narrative, they can release what they want."

While not nearly as restrictive as the LAPD's policy of only releasing body cam footage to parties involved in criminal or civil court proceedings, it's still a recipe for disaster. Florida has laws in place that already restrict the release of police-captured recordings and this pile of exceptions -- while facially well-intentioned -- allows agencies to further dodge accountability for their officers' misdeeds.

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]]>protections-that-only-protect-bad-copshttps://www.techdirt.com/comment_rss.php?sid=20150217/14490830061Tue, 20 Jan 2015 10:19:00 PSTEuropean Parliament Report Proposes Wide-Ranging Copyright Reform, Including Reduction Of EU Copyright TermGlyn Moodyhttps://www.techdirt.com/articles/20150120/03454429756/european-parliament-report-proposes-wide-ranging-copyright-reform-including-reduction-eu-copyright-term.shtml
https://www.techdirt.com/articles/20150120/03454429756/european-parliament-report-proposes-wide-ranging-copyright-reform-including-reduction-eu-copyright-term.shtmlchasm between the views of the public and those of the copyright industry. In particular, where the former wanted many aspects of copyright to change, the latter thought things were pretty good, and should be left as they were.

Often such consultations are just filed away, as is currently happening with the one on corporate sovereignty. But in the case of copyright, the person appointed to write a report on what should happen next is the lone Pirate Party Member of the European Parliament, Julia Reda, and she is clearly determined to use the results of the consultation to help reform EU copyright. The draft version of her report for the European Parliament evaluating the current 2001 copyright directive turns out to be remarkably faithful to many of the Pirate Party's ideas on copyright. Here's Reda's (intentionally Tweetable) encapsulation:

Although the directive was meant to adapt copyright to the digital age, in reality it is blocking the exchange of knowledge and culture across borders today.

Drawing on the responses to a public consultation on the topic by the Commission in 2014 as well as scientific studies, the report calls for common European rules: "The goals set out in the [copyright] directive can be best achieved with the introduction of a Single European Copyright Title", it states, emphasising the need to “allow equal access […] across borders” to achieve the goal of a digital single market.

The report calls for the harmonization of copyright terms and exceptions across Europe, new exceptions for emerging use cases like audio-visual quotation, e-lending and text and data mining, as well as the adoption of an open norm to “allow for the adaptation to unanticipated new forms of cultural expression”. It recommends “exempting works produced by the public sector […] from copyright protection” and demands that “exercise of exceptions or limitations […] should not be hindered by technological measures”.

That short summary rather downplays the boldness of the proposals, which are well-worth reading in full. In another sign of Reda's Pirate origins and general Net-savviness -- she also references Techdirt's "The Sky is Rising 2" report -- she has posted the full text of her draft on an online discussion platform that lets anyone comment and rate individual sections. Remarkably, the "harmonization of copyright terms" mentioned above is downwards:

Calls on the Commission to harmonise the term of protection of copyright to a duration that does not exceed the current international standards set out in the Berne Convention;

That is, life plus 50 years, rather than the widespread life plus 70 years. Reda also wants to protect and expand the public domain:

Recommends that the EU legislator should further lower the barriers for re-use of public sector information by exempting works produced by the public sector -- within the political, legal and administrative process -- from copyright protection;

Her proposals for harmonizing exceptions are equally dramatic:

Calls on the Commission to make mandatory all exceptions and limitations referred to in Directive 2001/29/EC, to allow equal access to cultural diversity across borders within the internal market and to improve legal security;

Not only does Reda want to bring in all the allowed exceptions and limitations across the whole EU, she also proposes a mechanism for creating new ones:

Calls for the adoption of an open norm introducing flexibility in the interpretation of exceptions and limitations in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author or rightholder;

She calls for the clarification of a number of important questions that have arisen recently. These include confirming that hyperlinking is not an infringement of copyright; allowing the use of photographs and videos of works that are displayed in public places; confirming that the caricature, parody and pastiche exceptions apply regardless of the parodic purpose; permitting text and data mining; exceptions for research and educational purposes, as well as allowing libraries to lend out ebooks. She also tackles DRM:

Stresses that the effective exercise of exceptions or limitations, and access to content that is not subject to copyright or related rights protection, should not be hindered by technological measures;

And adds this rather unusual rider:

Recommends making legal protection against the circumvention of any effective technological measures conditional upon the publication of the source code or the interface specification, in order to secure the integrity of devices on which technological protections are employed and to ease interoperability; in particular, when the circumvention of technological measures is allowed, technological means to achieve such authorised circumvention must be available;

As those excerpts make clear, practically everything here is likely to make the copyright maximalists howl -- particularly the unprecedented suggestion that copyright terms should be reduced for once, instead of constantly extending them, as in the past. Of course, not everything will survive the lobbying barrage that will hit the various EU committees as they review the text, nor will the European Commission adopt every proposal when it puts together its proposal for the new directive on copyright to update the current one.

But the report is nonetheless an amazing achievement for someone who has been a Member of the European Parliament for less than a year: Reda and her team should be proud of their work. It is also hugely important, because it raises in such a clear and thoughtful way most of the key problems with today's copyright. In doing so, it provides an excellent basis on which to have a wide-ranging discussion, both in the European Parliament and beyond, about ways to make the 300-year-old copyright system fit for the digital age.

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]]>she-said-what???https://www.techdirt.com/comment_rss.php?sid=20150120/03454429756Thu, 16 Oct 2014 07:57:35 PDTLatest Intellectual Property Chapter Of TPP Agreement Leaked: Would Be A Disaster For Public HealthMike Masnickhttps://www.techdirt.com/articles/20141016/05300128842/latest-intellectual-property-chapter-tpp-agreement-leaked-would-be-disaster-public-health.shtml
https://www.techdirt.com/articles/20141016/05300128842/latest-intellectual-property-chapter-tpp-agreement-leaked-would-be-disaster-public-health.shtmlwould never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration.

Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades.

A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid.

If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration.

Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains:

Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs.

However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies.

Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following:

For greater certainty, a Party may not deny a patent solely on the basis that the product did not result
in an enhanced efficacy of the known product when the applicant has set forth
distinguishing features establishing that the invention is new, involves an inventive step,
and is capable of industrial application.

Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective.

A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something.

In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders.

There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced.

The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling.

There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail.

There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.

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]]>transparency neededhttps://www.techdirt.com/comment_rss.php?sid=20141016/05300128842Wed, 16 Jul 2014 14:14:39 PDTThe Duct-Tape Approach To Fixing Broken Copyright Law Happens Again With Phone UnlockingMike Masnickhttps://www.techdirt.com/articles/20140715/18112227885/duct-tape-approach-to-fixing-broken-copyright-law-happens-again-with-phone-unlocking.shtml
https://www.techdirt.com/articles/20140715/18112227885/duct-tape-approach-to-fixing-broken-copyright-law-happens-again-with-phone-unlocking.shtmlor exploring how broken the system is in the first place. That actually makes things worse, because you have all these random "add-ons" that make copyright law make even less sense. When radio came along, we got some duct tape. When cable TV came along, we got some duct tape. When the internet came along, we got some duct tape. And not all of it made sense. There are still big fights going on today as everyone tries to sort out how the radio duct tape applies to the internet. And, of course, the Aereo fight was partly about whether or not the cable duct tape applies to the internet (leading to the Supreme Court turning duct tape into a duck).

We've discussed at length the ridiculous process by which cell phone unlocking was briefly declared legal under copyright law... and then magically became illegal due to a decision by the Librarian of Congress to rescind an exemption to the DMCA. After over 100,000 people signed a petition asking for it to be fixed, the White House told Congress to fix it -- but in true duct-tape fashion, decided that it should just add on some more duct tape by saying changes should be made to telecom regulations, rather than targeting the root of the problem: Section 1201 of the DMCA, better known as the anti-circumvention clause.

As we noted recently, after a year-and-a-half of a mix of fighting over this and a whole lot of nothing, the Senate came up with a compromise that isn't horrible, but doesn't do very much other than make it legal to unlock your phones again. The full Senate has now approved this. Of course, earlier this year, the House passed a dangerously bad bill to pretend that it was dealing with the problem as well, but it actually had some bad problems. The two houses will have to bring the bills into alignment now, and hopefully the Senate bill wins out.

However, as Tim Lee over at Vox points out, this is a huge missed opportunity because it's Congress taking that same duct tape approach yet again. Rather than actually fixing the underlying problem (a broken Section 1201), Congress has decided to pass a bill that duct tapes on "except for unlocking mobile phones... for now." This isn't surprising. Actually fixing Section 1201 would be a massive process that would lead to quite an insane fight from Hollywood (they love the anti-circumvention provision, because it allows them to DRM everything and create controls for themselves beyond what everything else in copyright law allows -- such as taking away fair use).

The other big stumbling block is that, thanks to bogus international trade agreements, doing something so simple as to actually fix this broken part of the DMCA that possibly made cell phone unlocking illegal... would likely violate more than half a dozen trade agreements. While Congress has the power to ignore those trade agreements if it wants, lobbyists love to go apeshit about anything that might "violate international agreements," as if suddenly Europe won't do business with us any more because we dare to let people unlock their mobile phones.

Either way, this one issue does a lot to show why copyright law continues to be such a mess. It's just a hack process, which new technology routes around... and Congress' response is just to duct tape on the next mess to "fix" the mistake, rather than look at the underlying reasons why the law is outdated and problematic. Hopefully you'll be able to unlock your mobile phones soon without worrying about breaking the law -- but that won't be true for other things, like modifying your video game console or other types of electronic devices. A sane world would get to the root of the problem and fix it, but this is Congress we're talking about, and no one thinks that's a sane world.

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]]>the-system-is-brokenhttps://www.techdirt.com/comment_rss.php?sid=20140715/18112227885Fri, 17 Jan 2014 12:02:37 PSTCopyright Week: Fair Use Is Not An 'Exception' But The RuleMike Masnickhttps://www.techdirt.com/articles/20140117/10562125920/copyright-week-fair-use-is-not-exception-rule.shtml
https://www.techdirt.com/articles/20140117/10562125920/copyright-week-fair-use-is-not-exception-rule.shtmlUpdate: This post was modified to better explain the role of the three-steps test in both Berne and the TPP.

Today is day five of Copyright Week, where the focus is on fair use. Earlier today we already had Michael Petricone's excellent post about the innovations and consumer benefits unleashed by the Betamax ruling, which hinged on the concept of fair use. Over at Wired, Automattic's (the makers of WordPress) general counsel, Paul Sieminski, also has a great post talking about how much innovation is enabled by fair use and why companies should be fighting more to support their users' fair use rights. Meanwhile, over at Public Knowledge, there's a good discussion of how the flexibility of fair use is important in enabling it to respond to new innovations. These are all great ways of looking at the issue.

I wanted to focus on a different aspect of fair use, however, and that's the unfortunate fact that it is often described (especially in official political discussions) as an "exception or limitation" to copyright. That implies, incorrectly, that copyright is "the normal state" and that fair use is something that can only be used in "exceptional" cases, where a political body has decided to carve out some small breathing space. But that's wrong. Fair use is about the rights of the public to speak, to make use of content, to comment, to criticize and to express themselves.

These are fundamental rights of the public -- not "exceptions or limitations."

It is, instead, copyright that has always been an "exception and limitation" on the rights to free expression. We can (and should) discuss and debate the proper levels of copyright and its limitations on expression. But to frame things as if fair use is a minor "exception" is a subtle but dangerous twist of language that copyright maximalists have been employing for far too long.

And it's a public right that is under threat. While negotiators were (after decades of negotiating) able to work out a WIPO Treaty for the Blind last year, copyright maximalists fought hard against it, because they were convinced that any attempt to expand what they called "limitations and exceptions" would set a dangerous precedent. And, if you look at things like the Trans Pacific Partnership (TPP agreement), the USTR tried to take credit for it being the first time that it was willing to include "limitations and exceptions" in a trade agreement. That, on its face, is true (and it's better than previous agreements, like ACTA, which ignored fair use and the public's rights entirely), but the wording does not in fact establish any limitations or exceptions: it sets out parameters that curb what limitations and exceptions countries are allowed to offer. The wording is based on a three-factor standard that is actually more restrictive than current fair use laws in the US. The standard is clearly modelled after the Berne convention, to which the US is already a signatory despite several differences, such as fair use, between US copyright law and that treaty's requirements. The TPP's "exceptions" would only serve to solidify these inflexible fair use requirements that the US currently, mercifully, defies.

Pay close attention to this issue as we go through the copyright reform process. Fair use isn't just some limitation or exception. It's not just -- as some have said -- a "valve" on copyright restricting speech. It is, instead, core to the very concept of free speech. It is the public's rights. Don't let the language twisters try to frame the debate as one about "limitations and exceptions" because if that's the debate, we've already lost. Fair use doesn't just enable all kinds of important innovations -- including much of the internet you use and love today. It represents a fundamental right of you to express yourself, and that right must not be taken away.

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]]>it's your rightshttps://www.techdirt.com/comment_rss.php?sid=20140117/10562125920Fri, 21 Jun 2013 14:25:00 PDTCopyright Exceptions Gaining Ground Around The World -- But Not For The BlindGlyn Moodyhttps://www.techdirt.com/articles/20130618/12524523520/copyright-exceptions-gaining-ground-around-world-except-blind.shtml
https://www.techdirt.com/articles/20130618/12524523520/copyright-exceptions-gaining-ground-around-world-except-blind.shtml
There finally seems to be a growing recognition in many countries that copyright is not fit for the digital age. In the US, the Copyright Registrar has spoken on this; in the UK, the Hargreaves Review delineated many problems; and more recently, Australia, too, is starting to address the question. As part of the process of implementing Hargreaves' recommendations, the UK government is carrying out a consultation on whether the UK should adopt the full list of copyright exceptions that are laid out in the EU Copyright Directive, which provides the overarching framework for copyright in Europe. It has now published some questionnaires seeking input in this area:

Each of the documents below relates to a separate exception, and contains a series of questions. We would welcome answers to the questions we have posed and any specific drafting suggestions.

The first drafts we are publishing for review are the exceptions for private copying, parody, quotation and public administration. Drafts for the other exceptions will be released as soon as they are ready.

The exception for private copying is straightforward:

will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their
own personal use.

Regrettably, it does not allow the circumvention of DRM:

the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.

That really guts the new exception, since publishers will simply add DRM to prevent copies being made. On the plus side, the proposed exception does explicitly state that contracts seeking to restrict the right to this exception will be unenforceable. That's also true of the proposed exceptions for caricature, parody or pastiche, and for quotation.

Although welcome, the UK's proposed copyright exceptions are hardly earth-shattering. Moreover, they don't change the fundamental approach to copyright in the UK. Australia's latest proposals for updating copyright, published recently as an extremely thorough and clearly-written 388-page discussion paper are considerably bolder, because they recommend shifting from the current fair dealing approach to fair use. Where the former consists of a limited set of defenses against alleged copyright infringement, fair use lists the general factors to be considered in determining whether the use is a fair or not.

Australia's proposed list of fairness factors are as follows:

(a) the purpose and character of the use;

(b) the nature of the copyright material used;

(c) in a case where part only of the copyright material is used -- the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and

(d) the effect of the use upon the potential market for, or value of, the copyright material.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

However, it's worth emphasizing that this is only a recommendation in a discussion paper (with comments open until 31 July.) Indeed, an alternative option is also presented, whereby the current fair dealing exceptions in Australian law would be extended to include a wide range of new ones, including for 'non-consumptive' use (temporary copies on the Internet, for example); private and domestic purposes; quotation; education; and libraries and archives.

Those are close to the more cautious approach being adopted in the UK (the Hargreaves Review noted the virtues of fair use, but claimed that there were "significant difficulties" in moving to it because of EU law.) But what's interesting is that both the UK and Australia, with its two alternative proposals, recognize that exceptions offer an effective way to update the copyright system. That contrasts with the obdurate position of the copyright maximalists, who claim that granting any copyright exception for the blind, no matter how limited, would somehow cause the whole system to collapse. That's simply absurd, as the current moves by both the UK and Australia to widen greatly the scope of copyright exceptions clearly demonstrate.

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]]>exception-to-exceptionshttps://www.techdirt.com/comment_rss.php?sid=20130618/12524523520Wed, 12 Jun 2013 13:11:35 PDTHow The MPAA Fought To Keep Audiovisual Materials Out Of WIPO Treaty For The Blind/Deaf; And How That's A Disaster For EducationMike Masnickhttps://www.techdirt.com/articles/20130608/13101023381/how-mpaa-fought-to-keep-audiovisual-materials-out-wipo-treaty-blinddeaf-how-thats-disaster-education.shtml
https://www.techdirt.com/articles/20130608/13101023381/how-mpaa-fought-to-keep-audiovisual-materials-out-wipo-treaty-blinddeaf-how-thats-disaster-education.shtmlrehabilitate its image concerning its well documented attempts to screw over the blind and the deaf in blocking the decades-in-negotiations WIPO treaty to improve access to works. Over at KEI, Fedro De Tomassi, has a detailed explanation for how the MPAA fought to keep "audio-visual works" completely out of the treaty, and the massive impact it has on education. First, he notes how frequently video is now used in the classroom:

Since I started taking classes at St. Olaf college 3 years ago, there has not been one professor that has not used some sort of audiovisual aid during the course. I am a political science major, and the trends of using videos is no different in the humanities. For example in my Russian and Eurasian politics class, we studied the relations between the Soviet Union and its satellite states today, and the use of Youtube videos and documentary films were instrumental in giving us a better understanding of the situation. The use of videos in education has become a norm to address the needs of various types of learners as well as to complement the various tools and sources at the disposal of the professors.

Videos are not used solely in the classroom, they are assigned as homework and part of the syllabus and the “reading list” of most if not all courses you have to take to get a bachelor today. Audiovisual materials also compose a large part of the library. Archival footage for example is an essential part of a history major curriculum.

Just last week, I had dinner with a university professor who was telling me the difficulty she had in trying to get the use of videos approved for her teaching, asking a variety of people about the copyright issues of even linking to clips online and getting back vague or contradictory answers.

Fedro then points out how the MPAA made sure the treaty for the blind and the deaf turned into one just for the blind.

In 2009, the Motion Picture Industry began to lobby the Obama Administration to narrow the treaty to "print disabilities" only, and to eliminate deaf persons as beneficiaries. By 2010, the Obama Administration took a hard line in the WIPO negotiations, backed upon by the European Union, to narrow the treaty, excluding deaf persons. This was designed to overcome political opposition from the MPAA, and the USPTO said the compromise on beneficiaries was necessary for the text to move forward. In November 2010, the WIPO SCCR agreed to separate the more "mature" issues of visually impaired and reading disabilities from "other disabilities" in its negotiations. In June 2011, a new committee sponsored negotiating text for this treaty (SCCR/24/9) defined beneficiaries in such a way that deaf persons were excluded.

But, that's not all. There were still questions around "audiovisual works" and the MPAA went to work again:

From 1985 to 2011, the various treaty proposals all would have covered any copyrighted work, including, for example SCCR/23/7, the text published in December 2011. But shortly after the MPAA was able to remove deaf persons as beneficiaries, they lobbied the Obama Administration to remove audiovisual works from the text. The Obama Administration proposed this formally in June 2012, and in December 2012, there was a deal to eliminate audiovisual works from the text, in order to get an agreement to hold a diplomatic conference in June 2013. Since nothing is set in stone in the negotiation, that decision can be changed, but it will probably require a change of position in the Obama White House, which has threatened to block the treaty if audiovisual works are included.

The MPAA's claims that it wants this treaty passed ring pretty hollow. It wants a completely gutted version approved at a time when audiovisual works are increasingly not just important, but necessary, for education.

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]]>a-serious-problemhttps://www.techdirt.com/comment_rss.php?sid=20130608/13101023381Tue, 4 Jun 2013 09:28:25 PDTMPAA: Oh, Of Course We Want To Help The Blind Read More... Just As Long As You Don't Touch CopyrightMike Masnickhttps://www.techdirt.com/articles/20130603/15494223299/mpaa-oh-course-we-want-to-help-blind-read-more-just-as-long-as-you-dont-touch-copyright.shtml
https://www.techdirt.com/articles/20130603/15494223299/mpaa-oh-course-we-want-to-help-blind-read-more-just-as-long-as-you-dont-touch-copyright.shtmlblock the approval of an important copyright treaty for helping the visually impaired and the blind gain more access to works was a PR nightmare, and decided to put out a joint statement with the National Federation for the Blind. Apparently, Chris Dodd's initial weak attempt at claiming that it loved helping the blind, despite working hard to stop the treaty, wasn't enough. Of course, the new "joint statement" is really more of the same when you peel back the basics.

We fully support a Treaty that facilitates access to published works in the form of text, notation and/or related illustrations for the blind and print disabled to address the book famine wherein the blind and print disabled have access to less than five percent of published works worldwide.

Then why have your lobbyists been the key blockade in that very agreement for years?

The Treaty must achieve two overarching goals: creating exceptions and limitations in copyright law which allow published works to be converted into formats accessible to the blind and print disabled, and permitting accessible copies of published works to be shared across international borders.

Yup. And that's what's been on the table for quite some time. And you know who's made sure to hold it up? Yes, the MPAA.

Ultimately, we believe it should be for signatories to determine how they will implement the Treaty in accordance with their legal and administrative traditions. We underscore that this important Treaty must not be a vehicle for extraneous agendas. The goal remains, as it has been since the outset, a meaningful treaty to create greater access to published works for the visually impaired.

Again, then you shouldn't have been blocking what's on the table for a while. Furthermore, it's kind of funny to see the MPAA now say that it wants countries to "determine how they will implement the Treaty in accordance with their legal and administrative traditions." Because that's the exact opposite position that the MPAA takes on other copyright efforts, like ACTA/TPP/etc. where the goal is to force the US's way on other countries. Hell, the MPAA has spent years telling other countries they need to add "digital locks" provisions to copyright law, even when that was inconsistent with their own legal and administrative positions. Basically, the MPAA is lying here. They only want that "flexibility" when we're talking about giving the public more rights, because they know they have enough sway with various governments such that those governments will block any meaningful changes to copyright law to allow more access to works by the blind.

From there, they list out a bunch of "core principles" that any treaty must follow, most of which are completely uncontroversial. But the two at the end are the ones that the MPAA is really focused on is:

4. Ensure that the treaty will be fully consistent with international copyright norms.
5. Avoid addressing extraneous copyright issues not directly related to creating greater access to published works for the blind and print disabled.

Basically, the MPAA will ensure that "international copyright norms" doesn't allow for things like fair use or other rights of the public, preferring instead to lock everything down as much as possible. And the "extraneous copyright issues" are, basically, the rights of the public. The MPAA's not a big fan of all that.

It's great that the MPAA is now saying this kind of stuff, and it could have said all of this a couple years ago and we could have had this treaty in place way back then, because nothing they say goes against what's been on the table. So, let's see what happens in the next negotiations, and we'll see how helpful MPAA lobbyists really are in terms of completing this process....

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]]>nice-tryhttps://www.techdirt.com/comment_rss.php?sid=20130603/15494223299Tue, 12 Mar 2013 12:06:13 PDTThe Government Might Want To Legalize Phone Unlocking, But Unfortunately It Signed Away That RightMike Masnickhttps://www.techdirt.com/blog/wireless/articles/20130311/01344922277/government-might-want-to-legalize-phone-unlocking-unfortunately-it-signed-away-that-right.shtml
https://www.techdirt.com/blog/wireless/articles/20130311/01344922277/government-might-want-to-legalize-phone-unlocking-unfortunately-it-signed-away-that-right.shtmlremove the DMCA anti-circumvention exemption that applied to mobile phone unlocking, along with the White House petition that got over 100,000 votes, and the White House's quick response to say that it agreed that phone unlocking should be legal. But for reasons that are not at all clear, it seemed to think it was something that could be fixed by telco law, even though it was copyright law that got us into the mess.

Lawyer Jonathan Band, who works for the Association of Research Libraries, has put out a really excellent short legal primer on the issue, which is a highly readable 8 pages, and covers all the necessary details and background, including a few things you probably have not read elsewhere (such as how some court cases had already narrowed the old "exemption" anyway). However, the most interesting part to me is where he talks about how the White House's position is likely in violation of existing international trade agreements and almost certainly against what the administration itself, via the USTR, is proposing in the Trans Pacific Partnership (TPP) discussions:

The White House position, however, may be inconsistent with the U.S. proposal
in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the
United States is a party. This demonstrates the danger of including in international
agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the
technological protection measures based on section 1201 of the DMCA. Furthermore,
KORUS mandates that the parties "confine exceptions and limitations" to the
circumvention prohibition to a specific list of exceptions that matches the specific
exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS
does allow for administrative procedures like the DMCA's rule-making to adopt
temporary exemptions, but not permanent ones. The challenge before Congress is to
devise a permanent exception for cell phone unlocking that does not breach the
obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was
leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions.
Because TPP is currently under negotiation, there still is time to make sure that the TPP
does not prevent national governments, including the United States, from amending their
laws to permit the unlocking of cell phones and other wireless devices.

This is why we find international agreements like ACTA, TPP and now TAFTA so worrisome. Even when they do not directly change the law, they often lock us into bad laws such that we cannot easily fix them. This is one small example, but an important one. Hopefully, the White House and the USTR will (1) release the current negotiating text for the IP chapter on the TPP so that knowledgeable people can go through and it make sure these little "easter eggs" are not present (2) make a clear and definitive statement that it will not agree to any international agreement that would do something as ridiculous as tie Congress's hands when it comes to allowing people to unlock their mobile phones.

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]]>oopshttps://www.techdirt.com/comment_rss.php?sid=20130311/01344922277Tue, 19 Feb 2013 20:05:00 PSTWIPO Negotiations Over Changes To Copyright For Those With Disabilities Once Again Shrouded In SecrecyMike Masnickhttps://www.techdirt.com/articles/20130219/02445522025/wipo-negotiations-over-changes-to-copyright-those-with-disabilities-once-again-shrouded-secrecy.shtml
https://www.techdirt.com/articles/20130219/02445522025/wipo-negotiations-over-changes-to-copyright-those-with-disabilities-once-again-shrouded-secrecy.shtmlcarve out some rules to give them slightly more rights to ignore certain copyrights in order to allow them to access some works. The negotiations have been going on for years (decades, depending on who you talk to) and the copyright maximalists absolutely hate the idea. They see it as opening the barn door for others to rush through asking for copyright law to be scaled back for them as well. There have been numerous stall tactics used and, of course, lots and lots of secrecy.

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

Love argued that Chatham House rules could be effective (in which you can talk about what was said, just not who said it). But, of course, the US said that was unacceptable. Because, of course, the US doesn't want anyone to know about its crazy arguments, even if they're not attached to the US itself.

But, really, the bigger problem is the threat of retaliation under this system for reporting on info discovered through other means. Love explains the problem:

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

It is simply unacceptable these days to hold such negotiations in complete secrecy. It is for reasons like this that people don't trust such organizations and think they're corrupt. Even if they're not corrupt and totally aboveboard, just doing these kinds of things in secret stirs up distrust for the government.

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]]>shamefulhttps://www.techdirt.com/comment_rss.php?sid=20130219/02445522025Mon, 11 Feb 2013 13:44:00 PSTWhite House Petition On Legalizing Unlocking Of Mobile Phones Tries To Pass 100,000 Signature ThresholdMike Masnickhttps://www.techdirt.com/blog/wireless/articles/20130210/02205321935/white-house-petition-legalizing-unlocking-mobile-phones-tries-to-pass-100000-signature-threshold.shtml
https://www.techdirt.com/blog/wireless/articles/20130210/02205321935/white-house-petition-legalizing-unlocking-mobile-phones-tries-to-pass-100000-signature-threshold.shtmlbumped up the number of signatures it requires to get on "We the People..." petitions from 25,000 to 100,000 before it is "required" to respond (though, its response rate on qualifying petitions has been dismal). Around the same time, we also talked about how unlocking your mobile phone, so it could be used on other carriers, was switching from being legal to being illegal, thanks to the Librarian of Congress choosing not to renew an exemption to the DMCA's anti-circumvention rules for unlocking mobile phones.

While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site, urging the President to reinstate the exemption:

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.

The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.

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]]>getting-closer...https://www.techdirt.com/comment_rss.php?sid=20130210/02205321935Tue, 5 Feb 2013 08:36:07 PSTEU Commission Wants More Copyright Licensing, But Not Creative Commons Or Fair UseMike Masnickhttps://www.techdirt.com/articles/20130204/12241621879/eu-commission-wants-more-copyright-licensing-not-creative-commons-fair-use.shtml
https://www.techdirt.com/articles/20130204/12241621879/eu-commission-wants-more-copyright-licensing-not-creative-commons-fair-use.shtmllocks in a predetermined conclusion that the only way to deal with locked up content in Europe is to get the big copyright holders to agree to more easily determined licenses. Again, this is not necessarily a bad thing, but it ignores the larger picture: including the fact that most content produced today is coming from individuals and not as a part of a larger industry.

La Quadrature du Net explains why the whole setup is a problem:

Instead of planning for a broad reform that would break away with full-on repression of cultural practices based on sharing and remixing, the Commission is setting up a parody of a debate. 75% of the participants to the working-group concerning “users” are affiliated with the industry and the themes and objectives are defined so as to ensure that the industry has its way and that nothing will change. Through this initiative, the EU Commission shows its contempt of the many citizens who participated in defeating ACTA and are still mobilized against repressive policies.

La Quadrature du Net is registered to participate in a working-group of the new “Licences for Europe” initiative called “User-Generated Content”. Everything in its name, theme and mission is biased to fit the views of the entertainment industry – which represents more than 3/4 of the participants! – The working group is meant to focus on “User-Generated Content”, as if works created by Internet users were a different category from “real” cultural works; as if today, everyone was not on an equal footing to participate in culture. The Commission's framing of discussion is subservient to major industrial actors who keep attacking their users' cultural practices and ignore the urgent need to reform copyright.

Just starting out from the point of view, that "user generated content" is somehow a different category than "content," itself is problematic, but much more problematic is the fact that there is no interest from this effort in things that would actually help out on a large scale: such as recognizing that copyright doesn't make much sense for many of these works, and that sharing and building on others' works is a part of how culture works (and that "licenses" can often get in the way of such things). In fact, the EU Commission made sure that no discussions of things like fair use were to be discussed, since the point of the discussion was just "licenses."

The working group is supposed to work only on licensing – contracts by the industry in which it controls everything – rather than discuss new exceptions to copyright, which would represent the general interest by allowing not-for-profit sharing and remixing of digital works.

This is really unfortunate. Because when you start from the position of licensing everything, you ignore the fact that not everything needs to be licensed. And, as a result, you end up with over-licensing, which is a real problem. Apparently, things got even worse once the sessions began. Even though there were rules in place designed to keep the details of the proceedings mostly secret, some indications from inside were that things were not going well, thanks to some tweets from COADEC.

Someone tried to point out that this seemed to be putting the cart before the horse, asking whether or not there has been any evaluation done as to whether or not licensing was really the best solution, and the moderator responded "well we want to deliver something." We've heard this before, many times. Politicians have no interest in making sure the solution they're pushing for makes sense or works, so long as they're seen as "doing something." We saw that nearly a decade ago when Senator Orrin Hatch tried to push his INDUCE Act, and when quizzed about it, he admitted that it might cause problems, but he had to "do something" or else.

Further making a mockery of the whole thing, someone brought up Creative Commons licensing... and that conversation was also shut down as a "certain industry" claimed it was "too early" to discuss such things. Apparently, this "certain industry" doesn't realize that Creative Commons is a form of licensing too. Like too many maximalists, they consider Creative Commons not to be a form of licensing, but another form of "copyright exceptions," (which it is not).

All in all, the whole session appears to have made a mockery of any attempt at real, meaningful copyright reform. One more comment from the session sort of highlighted the whole problem. As the moderator and people from "certain industries" shut down all talk of exceptions, and focused solely on how to set up a system with more and more licenses, an attendee asked a simple, pointed question:

Attendee asks, who gives a licence for mining the Internet?

And that, right there, encapsulates the entire problem. If you think that we shouldn't be talking about exceptions, and that everything requires licensing, what you're really saying is that search engines are illegal. Searching the internet without "permission" is illegal. And that's the world that the EU Commissions seems to think we should be heading towards.

Yes, locked up content is a problem, and fixing licensing is one part of the solution, but it cannot be done absent a more comprehensive look at the issues of the internet and copyright today. Completely ignoring things like fair use or other "exceptions" to copyright (I prefer to think of them as the rights of the public rather than "exceptions") means you get bad plans with bad results that border on the ridiculous.

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]]>that'll-make-the-lawyers-happyhttps://www.techdirt.com/comment_rss.php?sid=20130204/12241621879Thu, 24 Jan 2013 11:41:01 PSTJust Two More Days To Unlock Your Phone, Then You'll Be Breaking The LawMike Masnickhttps://www.techdirt.com/blog/wireless/articles/20130124/07015421777/just-two-more-days-to-unlock-your-phone-then-youll-be-breaking-law.shtml
https://www.techdirt.com/blog/wireless/articles/20130124/07015421777/just-two-more-days-to-unlock-your-phone-then-youll-be-breaking-law.shtmlitself a violation of copyright law, even if the purpose of the lock-breaking does not infringe on anyone's copyright. As a sort of "pressure valve" every three years, people can "apply" to the Librarian of Congress for exemptions to that rule. This, of course, is completely ridiculous and backwards. We need to apply, once every three years, to use legally purchased products the way we want to without it being considered illegal? That's crazy. But it's the way things are set up, and it can lead to some bizarre scenarios. As we explained last year when the latest round of exemptions was announced, the Librarian of Congress took awaythe exemption for unlocking your phone... but provided a 90 day window.

That window ends on Sunday. In other words, unlocking your phone on Saturday: legal. Unlocking your phone on Sunday: you probably just broke the law. As the EFF properly notes, this is not what copyright law is supposed to be about:

"Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It's up to the courts to decide."

I don't even think there's anything "arguable" about it. Copyright law has no business being involved in deciding whether or not my phone can be unlocked. It's silly that this is an issue. It's silly that there needed to be an exemption in the first place. And it's silly that this exemption is being taken away. It's for things like this that people lose respect for copyright law.

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]]>ridiculoushttps://www.techdirt.com/comment_rss.php?sid=20130124/07015421777Fri, 28 Dec 2012 00:01:32 PSTProposed Changes To UK Copyright Law Sensible But Require Gov't Request If You Want To Circumvent DRMGlyn Moodyhttps://www.techdirt.com/articles/20121227/09201721499/proposed-changes-to-uk-copyright-law-sensible-require-govt-request-if-you-want-to-circumvent-drm.shtml
https://www.techdirt.com/articles/20121227/09201721499/proposed-changes-to-uk-copyright-law-sensible-require-govt-request-if-you-want-to-circumvent-drm.shtmlTechdirt has been covering the UK's long-running saga of attempted copyright reform for some years. Most recently, we wondered whether even the Hargreaves Review's moderate suggestions would survive in the face of the usual frenzied lobbying from the copyright industry. Rather remarkably, they have, and the UK government has published a list of the legislative changes it proposes to make (pdf).

These are welcome but hardly revolutionary -- more a matter of dragging UK copyright law into the 21st century. They include:

a private copying exception that lets people make copies of content they have bought, but only for their personal use;

simpler rules for using copyright material in the education sector;

permission for the limited quotation of copyright works for any purpose, as long as the source is acknowledged;

a limited copying exception for parody, caricature and pastiche;

a research and private study exception;

permission to use published research results for data analysis, but only if it is for non-commercial purposes;

permission for people with disabilities to obtain copyright works in an accessible form if there is none on the market;

archiving and preservation exceptions, designed for museums, galleries and libraries;

wider exceptions for public bodies to share some third-party information online.

The government document provides plenty of background information on its thinking, and why it chose to make the exceptions it did. Along the way, it offers some fascinating insights into the submissions from the copyright companies, and how they attempted to stave off change once more. For example, perhaps aware that it would be unable to convince the UK government not to bring in a range of minor exceptions for the public, the copyright industry seems to have adopted a fallback position based around licensing contracts. Here's the issue:

One of the arguments made by creators and rights holders in consultation was that licensing should always preclude or override any exception to copyright: if there is a licence then people should purchase it.

If that reasoning were allowed, it would effectively gut all the new exceptions, since they could always be overridden by licensing contracts imposed on users. Apparently, some went even further:

Some responses to consultation suggested that allowing unlicensed use of works when a licence was available was necessarily a violation of the [Berne] three-step test. The Government believes this view to be incorrect, as the requirement of the three-step test is that the law "does not unreasonably prejudice the legitimate interests of the author", or conflict with the "normal exploitation" of the work.

As the UK government pointed out:

To argue that all exploitation of a work is "normal exploitation" is to reduce the three-step test to two steps, which is manifestly not its intent. Furthermore, a licensing override is potentially inequitable to users: some could be forced to buy licences for uses much broader than the permitted act in question, while others -- where there was no licensing scheme in place -- would pay nothing.

On the other hand:

users and institutions serving users felt that a failure to address the possibility of contract override could and did render permitted acts meaningless, and their benefits wholly or partly unrealised. They argued this was a problem now. Consumers were not in any position to negotiate the terms on which copyright goods were sold or licensed, and even larger users such as institutions argued that negotiation was so resource-intensive as to be effectively impossible as a general rule; prices were not transparent and there was little or no choice of supplier.

Fortunately, the UK government agreed:

to the extent that is legally allowed, the Government will provide for each permitted act considered in this document that it cannot be undermined or waived by contract. This may include a prohibition on licensing override of permitted acts, or restricting the terms on which licensing may impact on permitted acts. The aim is not to establish contract as superior to permitted act or vice versa, but to ensure licensing does not restrict acts that are beneficial to society as a whole.

However, there is one area where the proposals fall short: dealing with DRM, or "technical protection measures" (TPM) as the document puts it. The problem is that DRM, like contracts, could easily block many of the new exceptions that the UK government is proposing. Unfortunately, European law does not allow the UK government simply to grant users the right to circumvent DRM in such cases. Instead, there is an incredibly clumsy and inconvenient procedure that must be followed:

In the UK, if a person cannot carry out a permitted act due to a TPM, and the rights holder has refused to provide a 'workaround', the mechanism used is that a user may issue a notice of complaint to the Secretary of State (SoS). The SoS can issue 'directions' to ensure that the permitted act can be carried out.

In other words, if you want to make a backup of an ebook, or transfer a music file to another medium, but are stymied by DRM, you have to write directly to the minister concerned, and ask him or her to contact the copyright holder to provide a copy in some way. Convenient, no?

This ridiculous approach, which will inevitably be ignored by most people as they continue to turn to "alternative" channels to access material they have paid for, is a consequence of the 2001 European Copyright Directive (the European equivalent of the DMCA), which places limits on what the UK government may do in the area of TPMs.

The fact that the UK government is being forced to adopt such a manifestly impractical solution to DRM's override of the proposed copyright exceptions is a stark reminder of the effect other treaties like ACTA and TPP would have, since these too will oblige all signatories to adopt certain minimum legal requirements for copyright and other areas whether or not they think them reasonable or wise. Indeed, it's clear that the copyright maximalists have shifted their attention to such multilateral treaties because they neatly circumvent democratic discussions that can happen within individual nations, substituting instead secret negotiations behind closed doors that members of the public can't even follow, much less influence.

Given these constraints, the UK government has perhaps done the best it could as far as DRM is concerned. The same could be said about the rest of the proposals. None of them is radical or revolutionary, but the fight that it has taken to get them is a reflection of the extraordinary success the copyright companies have had in blocking even the mildest attempt to update copyright legislation in the UK and make it fit for the digital age.

The UK government has stated that it wants to bring the new exceptions into force by October 2013. After all these years, that day cannot come soon enough.

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]]>grateful-for-small-mercieshttps://www.techdirt.com/comment_rss.php?sid=20121227/09201721499Wed, 19 Dec 2012 19:58:37 PSTSlight Progress Made On Treaty To Help The Blind Not Get Screwed Over By CopyrightMike Masnickhttps://www.techdirt.com/articles/20121218/17340921433/slight-progress-made-treaty-to-help-blind-not-get-screwed-over-copyright.shtml
https://www.techdirt.com/articles/20121218/17340921433/slight-progress-made-treaty-to-help-blind-not-get-screwed-over-copyright.shtmlslow rolled this particular treaty -- bouncing back and forth between supporting such a treaty and not supporting it. Part of this issue, it appears, is that some of the key people in the Obama administration who recognized the value of such an agreement left, and the people who took over are known for their extreme maximalist positions. And, the concern with creating this treaty is that (*gasp*) it might open the door to governments giving people back their rights to make use of products they own.

So it took some people by surprise that the US showed up at the latest WIPO meeting apparently ready to support an agreement. Of course, the devil is in the details and the details showed that the US still didn't want anyone to call the thing a treaty, even as everyone else wants it to be a treaty. The US is also acting very tentatively on this, making it clear that it wants "final review" of the text, and that it might walk away if big copyright holders protest they don't like what they see. After some pressure from just about everyone else, the US has agreed that it will at least show up for discussions on making the agreement an actual treaty -- and that's quite reasonably being seen as progress.

The actual conference to discuss all of this will be held in June, and between now and then, expect all sorts of posturing (mostly by the US) in which they try to limit what's in the agreement and water it down as much as possible. The end result is unlikely to be particularly interesting. It's likely to be very limited and carve out all sorts of things (for example, it will only apply to text, rather than "audio-visual" works -- because, apparently, the MPAA has no interest in making its products more accessible). Having seen all of the scheming and roadblocks US officials have put up over the years concerning what should be a fairly straightforward agreement to help people who are disabled access more content, I'm not particularly hopeful anything useful will come out of this process in the end. But, the big copyright industry can rest easy at night knowing that blind people won't be able to access their materials.

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]]>but-still-a-long-way-to-gohttps://www.techdirt.com/comment_rss.php?sid=20121218/17340921433Tue, 25 Sep 2012 10:33:00 PDTAbsurdity Of Copyright Policy Leaves Dutch Supreme Court ConfusedBen Zevenbergenhttps://www.techdirt.com/articles/20120924/03124520499/absuridty-copyright-policy-leaves-dutch-supreme-court-confused.shtml
https://www.techdirt.com/articles/20120924/03124520499/absuridty-copyright-policy-leaves-dutch-supreme-court-confused.shtmlHoge Raad) has posed some pre-judicial questions to the Court of Justice of the EU regarding the home-copying exception in European copyright legislation -- raising significant questions about what is legal under EU rules and how it meshes with how people actually consume music. Of course, all it really seems to demonstrate is just how messy the copyright system is today. When the top judges of a country cannot figure out the seemingly simple question of whether downloading music and films is legal or not -- mainly due to a huge patchwork of amendments to copyright law over the years -- something needs to change. Drastically. Let's see if we can make some sense of it:

In essence, the home-copying exception allows people to make copies for non-commercial home uses. Such an exception makes a lot of sense, because these private copies are largely impossible to enforce anyway. A levy is imposed on manufacturers of blank media to compensate rights holders for the supposed "losses" from foregone license fees.

The case in question concerns a group of these blank media manufacturers, who refuse to pay the full levies imposed by the collecting society in charge of the compensation for the home-copying exception. The collecting society considers it fair to charge for "losses" that stem from people downloading unauthorized uploads. You see, in the Dutch system, there is a chicken and the egg problem where you may download copyright protected content, but you may not upload (not unlike its policy for marijuana where buying and selling is tolerated, but growing is not). Any uploaded material is therefore often considered to stem from an illegal source. There is a huge political debate about the desirability of this construction in the Parliament.

The Netherlands is one of the few countries that has a system like this, where the end-user is partly taken out of the equation for copyright infringement. This is due to a particularity in European copyright, which is a headache to comprehend, but necessary to understand the confusion of the Court. Here’s a quick summary:

The EU legislator adopted the so called "Copyright in the Information Society" Directive in the year 2001, which was supposed to "adapt legislation on copyright and related rights to reflect technological developments" and make sure all 27 copyright systems in the EU would become more or less uniform. The hope was that this would knock out some of the problems of very different systems, and create a better "single market" for European content.

Of course, no copyright law is complete without the important exceptions and limitations, like the fair-use doctrine in the US. However, in the case of the copyright directive, the exceptions and limitations were optional for Member States, thereby effectively eliminating any chance for a uniform (or "harmonized") copyright legislation in the EU and thus missing the point completely. Information activist Smari McCarthy explains the resulting chaos well:

The directive outlines 21 different optional exceptions or limitations to the right of reproduction of copyrighted works. Each country implementing the directive can choose to either include or leave out the exception clause. This gives us 2,097,152 different ways to implement the directive.

Now repeat this for the 27 Member States, and you see where this fragmentation exercise is going. Since only a few countries have also implemented this home-copying exception and there has not yet been a legal conflict about it, no jurisprudence exists on which the Dutch court can rely. The exception reads as follows:

Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: [...]

[...] in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned;

As you see, this text does not include any information on whether the fair compensation should be based on only foregone license fees (implying only copies from legal sources), or whether all copying on blank media carriers should be included.

When the collecting society proposed to start charging for copies from illegal sources in 2008, the manufacturers of blank media went to court hoping for a ruling that levies should only be payable for copies which are allowed under the copyright directive, thus only from legal sources (as this would decrease the levy significantly).

If you read through the lines of the courts’ analysis (and if you understand Dutch), I think you can see quite clearly that the judges tried their utmost to find a way to reconcile this copyright exception with the way people share and use works online. The Court states it would like to give rights holders a fair compensation via a levy system for losses from piracy, but it is unsure if EU law allows this. In its questions, the Court proposes some ways of establishing the mechanism for fair compensation and asks the European court whether this would be permissible under law. The questions asked by the Court are rather technical in nature, but here’s a quick summary of the main points (my interpretation, not a literal translation!):

1. Can the home-copying exception be interpreted so that the exception applies to all copies, regardless of whether the original was an authorized source? Or does the exception only apply to copies, which are derived from an original, which does not infringe copyright itself?
2a. Can the three-step test be used to expand the scope of the exception to include all copies?
2b. Is the Dutch construct – where downloading from any source is legal – in conflict with EU law? Would it help to mention that feasible technical tools to counter the making of private copies is not yet available, which may influence your decision regarding the three-step test? [...]

I find it remarkable that Court contemplates a compensation paid for downloading copyright protected works from an illegal source, but that this does entail that the act of copying of this content is permissible under law. In my opinion, there are simply just two options: either it is permissible to make private copies from an illegal source and we pay the levy, or it is illegal and we don’t pay the levy. I do not agree with the current system either, though, where downloading from illegal sources is permissible but no levies are charged over this.

The court misses some important points here, indeed. First, if people are paying levies for unauthorized downloads, society will perceive their actions to be justified. Second, people mainly use phones, computers and portable devices for music and films. Hardly anyone uses blank media any more. Therefore, levies on CD’s, for example, miss the objective. Third, if a levy is imposed, we get into the sticky situation where actual losses from downloading unauthorized content needs to be determined, which is a seemingly impossible task. Finally, the Court may not have been informed about this, but there’s been a fierce quarrel on the amount charged for levies at the EU level, which has raged on for the past 15 to 20 years. Recently a mediator had to be hired to find a way out of this mess.

Apart from total confusion about the copyright system and how it should be applied to the internet, the Court may have also chosen to sidestep the current and hostile politicized debate in the Netherlands, which was met with opposition from many sectors of society. The Court has not given a conclusive ruling in this debate, so now the European Court may rule on whether the Dutch construction is legal. Expect an update in a few years time!

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]]>sidestep-and-postponehttps://www.techdirt.com/comment_rss.php?sid=20120924/03124520499Tue, 18 Sep 2012 13:54:05 PDTWhy The Internet Archive Says It Can Show You Every TV News ProgramMike Masnickhttps://www.techdirt.com/articles/20120918/11353620416/why-internet-archive-says-it-can-show-you-every-tv-news-program.shtml
https://www.techdirt.com/articles/20120918/11353620416/why-internet-archive-says-it-can-show-you-every-tv-news-program.shtmloffering up a treasure trove of TV news broadcasting and thought it was a great thing. They're basically making available every TV news recording they could get from 2009 forward, including all of the major TV networks, the news channels (CNN, Fox News, etc.), etc. They'll also have a bunch of local TV broadcasts as well, which is cool. All in all, it's launching with 350,000 clips. They'll even have recordings of The Daily Show as a part of the archive -- which seems fitting, since Internet Archive mastermind Brewster Kahle noted that with this collection, they can "let a thousand Jon Stewarts bloom" by letting them find interesting (or contradictory) news clips.

You can go check out the TVNews Search & Borrow site right now. The search feature is pretty cool, combing through closed captions to find the relevant content. So it's neat to do a quick search on topics of interest and see what they turn up. Of course, there are still a few kinks to work out. Out of curiosity, I did a search on SOPA, and got back some relevant news stories (including the Jon Stewart story about blackout day. But... I also got a bunch of Spanish-language programs about soup. Even when I limited the language to English. I assume those things will get better over time. Each clip is split into 30 second increments, so it's not like you're automatically getting the full broadcast, though you can piece together the clips.

And it's not just a "historical" archive. They're going to continue to add to it, with new clips being available 24-hours after they air.

Of course, all of this made me wonder about the copyright issues involved. The NY Times had this somewhat cryptic statement:

The act of copying all this news material is protected under a federal copyright agreement signed in 1976. That was in reaction to a challenge to a news assembly project started by Vanderbilt University in 1968.

I was curious about that, and a few people pointed me to 17 USC 108 (f)(3), which notes that:

nothing in this section shall be construed to limit the reproduction by lending of a limited number of copies and excerpts by a library or archives of an audiovisual news program subject to [a few other clauses concerning archives]...

This is based on the Vanderbilt Television News Archive, which the Internet Archive directly calls out in its own announcement as being the inspiration for this new project. Inspiration... and legal helper.

Indeed, in the early days of the archive, CBS had sued for copyright infringement, claiming that broadcasts could not be recorded without the permission of the networks. At the time of the lawsuit, Congress was in the process of revising the copyright law. Congress recognized the growing importance and influence of television media on American culture, thought, and politics, and felt that news broadcasts should have special protection under the copyright law, to allow the American people access to their own history. Senator Howard Baker of Tennessee introduced an amendment to the 1976 U.S. Copyright Act to give universities and archives the right to record news broadcasts off-air and to make a limited number of copies for research purposes. Following the enactment of the new law with this provision, CBS and Vanderbilt mutually withdrew from the lawsuit.

But does that really make the Internet Archive legal? I'm not so sure the TV guys are going to see it that way. That same report at Historians.org notes that Vanderbilt is not allowed to share nearly all of its collection online -- and it also notes that "The advent of the Internet and the consequent possibility of making digital copies and lending them online have, however, raised new legal problems that need to be resolved." I would imagine that a key one among them is whether or not the Internet Archives' setup qualifies as "lending a limited number of copies."

One would hope that an informed court would recognize that this fits with the intent of Congress in creating this kind of exception, though I fear that the networks are likely to fight pretty hard on this one, even as it seems like this service could really benefit them as well as others, rather than really take away from anything they do.

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]]>and-why-the-tv-news-guys-may-disagreehttps://www.techdirt.com/comment_rss.php?sid=20120918/11353620416Tue, 11 Sep 2012 03:06:28 PDTIndustries Dependent On Copyright Exceptions Contribute $182 Billion To Australian EconomyGlyn Moodyhttps://www.techdirt.com/articles/20120910/12101720331/industries-dependent-copyright-exceptions-contribute-182-billion-to-australian-economy.shtml
https://www.techdirt.com/articles/20120910/12101720331/industries-dependent-copyright-exceptions-contribute-182-billion-to-australian-economy.shtmlDespite the absence of credible studies supporting the idea, part of the copyright maximalist dogma is that the wider the reach of copyright, and the stricter the application, the better. As a corollary, copyright exceptions are anathema, which is why the US and EU are still shamefully resisting an international treaty that would enable more books covered by copyright to be produced in versions suitable for the visually impaired, since it would create a minor exception to help make that happen.

Part of the difficulty in contesting this view is that there is also very little research showing that exceptions are important, especially for driving economic growth. That makes a new report called "Excepting the Future" (pdf), commissioned by the Australian Digital Alliance, and pointed out to us by @MsLods, a particularly important contribution to the debate.

It starts by explaining why traditional copyright, devised in an analogue world, is no longer working:

digital content cannot be handled without copying it. Thus in the digital world, the distinction between handling
and copying a work has completely broken down. All handling of digital content, however helpful to society or rights holders, may prima
facie be a breach of copyright, attracting liability to rights holders if they have not permitted it.

It goes on to draw a suggestive parallel:

This situation is dysfunctional. It is not unlike the state of air-space law at the point at which the development of aviation had rendered it obsolete. In the early twentieth century, following Roman Law, land owners held exclusive rights "up to Heaven and down to Hell" giving them impracticable veto powers over air routes.

It was only when legal certainty was established by crafting an exception that allowed aircraft to pass over private property that the aviation industry really developed; the report calls for similar liberating exceptions to be created in Australian copyright law, so as to bring it more in line with the US's looser and highly-successful fair-use framework.

Australia's current copyright system is ill-equipped to cope with key Internet activities like search and indexing, caching and
hosting, since they all involve incidental copying. Theoretically, companies providing those services ought to seek licensing agreements with copyright holders to avoid infringement. The report calculates how much time and money would be required to do that in the case of search engines:

If the 170 search engines listed at www.philb.com/webse.htm transacted with all 3.8 million Australian domain name registrants [to obtain permission to allow their sites to be indexed], it would involve 645 million transactions. If each transaction took 9.5 hours [to allow for multiple communications and checks by the site regarding rights], then, at average weekly wages, the transaction costs would exceed $150 billion a year. And that is just for the Australian domain names.

As well as the huge costs that current Australian law would entail if applied to the letter, the report quantifies the contribution that industries making use of copyright exceptions contribute to the economy: 14% of Australia’s annual Gross Domestic Product, or $182 billion; they also employ 21% of its paid workforce, almost 2.4 million people. The report further estimates the contribution more flexible copyright exceptions, coupled with better safe harbors, would contribute to the economy: around $600 million annually.

Of course, these figures can, and probably will, be contested by those ideologically against copyright exceptions. But it's a start, and a welcome one in the context of the prevalent assumption that more copyright equates to more economic benefit.

Canada passed a law in June that sets a new standard of permissiveness. It caps statutory damages if copyright is breached for non-commercial purposes. It expands the definition of “fair dealing” (“fair use” in America) and creates exemptions for educational purposes and for parody. Firms must pass warnings about infringement to the person who posted the material rather than immediately take the content down themselves. This contrasts with practice in America and Europe, where a web company alerted to infringing material must remove it. This encourages knee-jerk responses to complaints.

Britain too plans to introduce internet-friendly legislation this autumn after a review led by Ian Hargreaves, professor of digital economy at Cardiff University. As with Canada’s law, the recommended new code entails exemptions for non-commercial uses and user-generated content. Also mooted is a “digital copyright exchange” that would establish a marketplace for copyright. A musician could list her song and the licensing terms. A filmmaker wanting to use it would know quickly and simply what to do.

It also talks about how Ireland and Australia are both exploring more open and internet friendly copyright reforms. The article does note that this is not all going smoothly. There are efforts to create taxes on content to preserve old business models, for example. But it does seem like, for the first time in pretty much anyone's lifetime, there actually are real and legitimate efforts to push back on the excesses of copyright law, with the recognition that it's done more harm than good.

I'm not quite as optimistic as the Economist piece, as almost all of those efforts (Canada excepted, and even that came with bad digital locks/DRM anti-circumvention provisions) are still nascent and are facing tremendous lobbying pressure to go in the other direction. Furthermore, we just got through the SOPA and ACTA fights, and the latest round of TPP negotiations are going on as we speak. Plus, there's plenty of evidence suggesting that even as the RIAA and MPAA have had their budgets slashed, they're gearing up to continue the push for copyright maximalism in all corners. There are inklings of hope and greater and greater recognition of the problem, but I'd say that we're a long, long way from seeing the tide really turn -- and there's still an unfortunately large possibility of things going back to maximalism-as-usual.

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]]>maybe...https://www.techdirt.com/comment_rss.php?sid=20120905/02125120278Mon, 6 Aug 2012 03:05:10 PDTTPP Text On Fair Use Leaks; US Proposals Are Really About Limiting Fair Use, Not Expanding ItMike Masnickhttps://www.techdirt.com/articles/20120804/00173819933/tpp-text-fair-use-leaks-us-proposals-are-really-about-limiting-fair-use-not-expanding-it.shtml
https://www.techdirt.com/articles/20120804/00173819933/tpp-text-fair-use-leaks-us-proposals-are-really-about-limiting-fair-use-not-expanding-it.shtmlslightly encouraged by the public statement from the USTR that it was adding language to the TPP agreement that embraced "limitations and exceptions" to copyright law -- even as we believe that it's wrong to call fair use rights "limitations and exceptions" when they're really just enforcing the public's own rights to information. We also found it bizarre and ridiculous that no text was being shared -- and noted that the USTR would garner a lot more trust if it was actually transparent and opened up the language in question for public discussion. Others expressed some specific worries about even the nature of the statement.

That said, it was a big deal that the USTR would even acknowledge such things as fair use in a document like this, because historically it had never done so. It appeared to be a "step" in the right direction, but a relatively small one.

Late on Friday, however, the text of the current negotiations on that particular section leaked to KEI who posted it to their site, and while (again) at least this is on the table for discussion, there are reasons to be greatly concerned. As many public interest groups had wondered, it appears that the text focuses on expanding the "three step" test for these expansions of user rights. The three step test for user rights, as is written into the Berne Convention agreement is much more limited than most of what we conceive of as fair use (it's also a relatively recent addition to the Berne agreement, being added in 1971). It's this:

Members shall confine limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder

[US:
1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

[US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. [NZ/CL/MY/BN/VN propose; US/AU oppose: Paragraph 1 permits a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws. Similarly, these provisions permit a Party to devise new] [US/AU propose; NZ/CL/MY/BN/VN oppose: its understood that each party may, consistent with the foregoing, adopt or maintain] exceptions and limitations for the digital environment.]

---
92 [US: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under paragraph 2]
93 Negotiator’s Note: SG/PE: Can accept both versions of paragraph 1.

As you can see, item one, proposed by the US and Australia basically inserts in the exact three step test, which makes TPP more restrictive than other international agreements like TRIPS, which give countries significant flexibility in establishing fair use rights and other user rights.

It's also notable that, in that second section, many other countries have proposed allowing a form of user rights for breaking DRM and digital locks -- something that many of us think are important. But the US and Australia oppose that section.

Either way, if you look just at the sections supported by the US, you quickly realize that what the USTR is proposing here is less about support for fair use and other user rights, and defining the constraints on such things so that TPP member countries are not able to implement more user rights.

Needless to say, this is unfortunate (though, perhaps, not a huge surprise).

No wonder the USTR refused to release this text. As per usual, it seems, the USTR was saying one thing while meaning another. Yes, it actually is recognizing the existence of user rights... but only for the purpose of limiting how countries can implement them.

Finally, as Jamie Love at KEI notes:

Dear Congress: WHY IS THIS NEGOTIATING TEXT KEEP SECRET FROM THE PUBLIC?

Leaks are hard to come by, and do not invite as much scrutiny as official versions that are shared with the public.

And this particular text is a perfect example of why this text needs to be public. The USTR made public claims suggesting a much wider embrace of user rights, but without sharing the specific text it was proposing. Now that we see what text is being proposed, it's clear why that was. The USTR isn't looking to expand or protect user rights. Instead, it appears to be merely acknowledging them for the sake of limiting them as compared to existing agreements like TRIPS.

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]]>unfortunatehttps://www.techdirt.com/comment_rss.php?sid=20120804/00173819933Mon, 2 Apr 2012 03:37:24 PDTAustralia To Explore Adding Greater Copyright ExceptionsMike Masnickhttps://www.techdirt.com/articles/20120330/02321318298/australia-to-explore-adding-greater-copyright-exceptions.shtml
https://www.techdirt.com/articles/20120330/02321318298/australia-to-explore-adding-greater-copyright-exceptions.shtmlfreaking out over the possibility of greater copyright exceptions (fair use, fair dealing, etc.) in the UK, it's been really encouraging to see significant interest in copyright exceptions elsewhere. In that second link, we talked about efforts down in Australia to get the government to explore greater copyright exceptions as part of the TPP treaty. Perhaps those efforts are having an effect. It appears that the Australian Law Reform Commission is now considering the possibility of expanding the use of copyright exceptions within the law.

The the full document (pdf) notes that it needs to be explored if the existing exceptions are "adequate and appropriate in the digital environment" and if greater exceptions might:

facilitate legitimate use of copyright works to create and deliver new products and services of
public benefit; and

allow legitimate non-commercial use of copyright works for uses on the internet such as
social networking.

For those of you who live in Australia, there's an open comment period for what the "terms of reference" for the inquiry should include. You can be absolutely sure that the industry folks will be working hard to stifle copyright exceptions. Hopefully the public's voice -- and the voice of real creators who value and make use of exceptions every day -- will be heard as well.